On Monday, the Supreme Court handed down a decision upholding a Baltimore police officer’s conviction for extortion under a key federal corruption statute called the Hobbs Act.  In the majority opinion, Justice Alito wrote that the officer’s agreement with an auto body shop’s owner to accept kickbacks in exchange for directing car accident repair work to the shop constituted extortion under the law.  And despite the dispute among the Justices about whether the payer in the extortion scheme may or may not be part of the conspiracy, all Justices agreed that the existence of an agreement between the parties is what defined a conspiracy and differentiated it from other lawful relationships.

That decision stands in stark contrast to Justice Alito’s concern in the Court’s argument last week over whether or not to uphold former Virginia Governor Bob McDonnell’s conviction for accepting a bribe.  There, Justice Alito expressed a worry, echoed by other Justices, that the need for a jury to find beyond a reasonable doubt that the bribe payor and government official reached an agreement—that a quid pro quo existed—does not create a clear enough line between lawful constituent services and an illegal exchange.

If an agreement, however, is sufficient to distinguish a lawful financial relationship from a criminal conspiracy, then it must also be sufficient to distinguish a lawful constituent relationship from an unlawful bribery scheme.

And the fact that the defendants in question are state officials being charged under a federal law is irrelevant.  Or, at least, that’s what Justice Alito found in the majority opinion Monday when he rejected federalism concerns raised in prosecuting a municipal police officer—an even more local official than Virginia’s Governor—under a federal extortion statute.

Of course, attempting to discern a Justice’s ultimate holding from his questions in oral argument is little better than reading tea leaves.  Nonetheless, we hope Justice Alito’s reasoning in Monday’s decision sufficiently answer’s Justice Alito’s questions in McDonnell.

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